With pay raise, Wal-Mart misses minimum wage movement’s $15 mark

Wal-Mart announced on Thursday that it will raise the wages of 500,000 of its 1.3 million workers in the United States by instituting a $9 an hour starting rate in April that will increase to $10 in February 2016

The announcement is no doubt good news for the workers who will pocket more money each week, but in an era when $15 per hour has become the rallying cry of a growing minimum wage phenomenon, the move can easily come across as too little, too late.

Wal-Mart’s announcement on Thursday that it will set its entry level pay at $6 less than that has struck some as a feeble attempt to quiet—if not satisfy—the minimum wage movement; like a comeback to a stinging joke when the conversation’s already moved on.

“This is a symbolic victory for Wal-Mart,” says Tom Juravich, professor of sociology at University of Massachusetts Amherst. “They have no intention to meet the Fight for $15’s demands. This is a classic technique that we see in collective bargaining and organizing campaigns. Management will give a small or symbolic raise to take the energy out of the campaign. That’s what they’re intending to do here.”

Tsedeye Gebreselassie, a senior staff attorney at the left-leaning National Employment Law Project, called Walmart’s $9 minimum wage antiquated. “If they’d made this announcement a few years ago, it would’ve been a significant step for low-wage workers.” But with states and cities setting double-digit minimum wages, $9 “is a bit behind the curve.”

Wal-Mart says that it had been looking at raising its associates’ wages for a while and made its announcement on Thursday after talking to their employees to figure out “what it is that they’re looking for overall in a job. Starting wage is part of that,” Kory Lundberg, a Wal-Mart spokesman, told Fortune. Lundberg also noted that Wal-Mart listens to its “critics.” He said $9 an hour “is a good number for us; it made sense for our associates.” Lundberg also said that increasing the starting wage any more than that would have set “the first rung of the economic ladder too high,” making the jobs “unattainable” for workers seeking entry level experience. Once the company institutes its $9 minimum wage in April, part-time Wal-Mart workers nationwide will earn $10 per hour on average; full-timers will make $13.

Wal-Mart plans to adjust the $9 starting wage to account for regional cost of living. Chris Tilly, director of UCLA’s Institute for Research on Labor and Employment, pointed out that the areas where the $15 minimum wage has gained the most traction are big, expensive markets. The heart of Wal-Mart’s business, meanwhile, is in the rural United States. (In fact, the retail has often had trouble breaking into large metropolitan areas.) “[Wal-Mart’s] not trying to impress urban sophisticates. Its customers are shopping at Wal-Mart to get a lot at a low price. [Wal-Mart] wants to speak to that constituency in the heartland.” Perhaps, then, $9 per hour does the trick.

But by lowballing the minimum wage movement’s $15 demand, Wal-Mart may have missed an opportunity to make a major, sweeping change in the lives of low-wage workers throughout the nation. “Wal-Mart not only can do better; it has an obligation to,” Gebreselassie, says. “As one of the largest employer, what it does really sets the standard for the [retail] sector.”

The paid sick leave battle continues, state by state

When residents of Massachusetts; Oakland, Calif.; and Trenton and Montclair, N.J. were asked if they wanted their local governments to require employers to offer workers paid sick leave on ballots in November, they voted yes in every instance.

President Barack Obama presented his proposal for universal paid sick days building on that momentum: “Let’s put it to a vote right here in Washington,” he said. “It’s the right thing to do.”

But as the wave of legislative and ballot initiative wins continues, there’s a counter trend spreading across the country that aims to kick the legs out from under future victories: statewide laws preempting local governments from instituting their own paid sick day mandates.

Rowden did not return requests for comment, but he when announcing the bill, he said it would ensure that businesses don’t have to deal with confusing and complex regulations that vary across the state and will protect businesses from activists on local city councils who want to attack job creators and hurt the middle class. On Twitter, he said that the legislation was intended to “protect small businesses from overreaching and unbalanced regulation.”

Eliminating the hodgepodge of local laws is a common refrain for advocates of statewide preemption laws, says Gordon Lafer, an associate professor at the University of Oregon’s Labor Education and Research Center. That was the rationale for a law that Florida Governor Rick Scott signed in June 2013. The bill, which had the support of Walt Disney World, Darden Restaurants, and the Florida Chamber of Commerce, “fosters statewide uniformity, consistency, and predictability in Florida’s employer-employee relationships,” Scott said in a statement at the time.

“What gets said is, ‘We shouldn’t have this mish-mosh of different laws; we want a state standard, and the state standard should be nothing,’” Lafer says.

Arguably, the most notable preemption law was passed in Wisconsin in 2011, when legislators approved legislation that repealed Milwaukee’s sick leave law—even though it had passed by ballot initiative in 2008 with 69% support—and prohibited local ordinances from requiring businesses to provide paid sick leave to employees. Wisconsin Governor Scott Walker said the law would guarantee regulatory consistency. “Patchwork government mandates stifle job creation and economic opportunity,” he said. “This law gives employers the flexibility they need to put people back to work and that makes Wisconsin a more attractive place to do business.”

Lafer says that a lack of public awareness might have helped states push sick leave preemption bills through the legislative process—workers may know less about paid sick day benefits than they do about something like the minimum wage.

President Obama’s spotlight on paid sick leave in his State of the Union address may have pulled the issue out of the shadows. At the same time, Americans were not blind to the issue beforehand. The Public Religion Research Institute found that 81% of its respondents to a survey last year were in favor of the type of sick leave legislation that Obama is proposing, including 70% of Republicans.

The debate over sick leave this year may turn into a race to see if advocates can build enough awareness and support such laws before legislatures that oppose the benefit act to ban them.

Do NFL cheerleaders need their own Bill of Rights?

Four days before some 100 million viewers tune in to watch the New England Patriots and Seattle Seahawks battle in Super Bowl XLIX, a California lawmaker introduced a bill to protect the rights of women like those who will be dancing on the sidelines on Sunday.

On Thursday, Assemblywoman Lorena Gonzalez, a Democrat from San Diego, announced a bill that would consider cheerleaders as employees under California law and require professional sports teams in the state to grant them the same rights as other employees. The legislation aims to protect cheerleaders from workplace violations, like unpaid overtime and having to pay for work expenses with their own funds.

The bill comes in the wake of a landmark class action wage theft lawsuit filed by two former Raiderettes against the Oakland Raiders, which highlighted alleged workplace abuses that professional cheerleaders endure. In September, the Raiders paid $1.25 million to settle the lawsuit, which claimed that the Raiderettes were paid a lump sum of $1,250 at the end of the season for their work, amounting to as little as $5 per hour. The lawsuit also said that cheerleaders were not paid for all the hours they worked and were forced to pay for job-related expenses out of their own pockets. With the settlement, the Raiders started paying its cheerleaders California’s minimum wage: $9 per hour.

NFL cheerleaders have also sued the Buffalo Bills, Cincinnati Bengals, New York Jets, and the Tampa Bay Buccaneers for minimum wage violations.

Unpaid interns have their day in court—again

Whether you noticed it or not, a big question has been hanging over the heads of companies and their prospective workers for several years now: Is an intern an employee?

The Second Circuit Court of Appeals in Manhattan will address that query on Friday when it reviews earlier decisions in two cases filed by unpaid interns whose opposite outcomes put the now-ubiquitous unpaid internship in legal limbo.

“This is the case that everyone’s been waiting for,” says David Yamada, a law professor and director of the New Workplace Institute at Suffolk University.

In June 2013, Manhattan district court judge William Pauley III sided with former Fox Searchlight Pictures interns, ruling that they deserved minimum wages in exchange for their work at the company. In that case, two interns on the 2010 film Black Swan claimed in a lawsuit that during their time at Fox, they received no compensation even though they completed tasks—like taking lunch orders, answering phones, and making travel arrangements—that were typically the responsibility of paid employees.

Another group of unpaid interns sued Hearst Corporation with similar claims; namely, that the publisher had violated labor law by not paying them for the work they did while interning at Harper’s Bazaar, Cosmopolitan, Marie Claire, and other magazines. They didn’t fare as well. In May 2013, another Manhattan district judge, Harold Baer, denied the interns’ motion for summary judgment and concluded that “a jury could return a verdict in Hearst’s favor.”

The two similar cases had conflicting outcomes because the judges deciding them relied on different approaches to determine if interns should be covered by employee protections. “There is no legal meaning for ‘internship,'” says Yamada, who signed an amicus brief in support of the Fox interns. “It’s just a designation that we’ve come to know by labeling summer positions as internships.”

In the absence of a formal definition, the judges in the Fox and Hearst cases relied on the next best thing: a Supreme Court ruling in a case about railroad trainees from 1947 that served as the basis for an internship fact sheet the Department of Labor compiled in 2010. The sheet lists six criteria that the Labor Department says must be met for an unpaid internship to be legal, such as, “the internship experience is for the benefit of the intern,” and “the intern does not displace regular employees, but works under close supervision of existing staff.”

While both judges relied on the Labor Department’s cheat sheet, they still managed to issue contradictory rulings. Why? Generally speaking, it’s because the ruling in the Fox case used the Department of Labor criteria as a rigid checklist and found that the movie studio failed to meet every requirement. In the Hearst case, Judge Baer used the rules as a “framework” for analyzing the employee-employer relationship and decided that Hearst met enough of the Department of Labor’s requirements to make its unpaid internships legal. It’s now up to the Second Circuit to decide which interpretation is correct.

The September 2011 lawsuit against Fox filed by former interns Eric Glatt and Alexander Footman was the first of its kind and prompted a flood of copycat suits against media and entertainment employers like The Charlie Rose Show and Elite Model Management, which were sued in 2012 and 2013 respectively. (Both cases have since settled.) In October, NBCUniversal settled a lawsuit brought by former unpaid interns of “Saturday Night Live” and other shows for $6.4 million. And just this week, former interns sued Rolling Stone magazine and CBS Corp. claiming labor violations.

The wave of lawsuits has drawn attention to unpaid internships, which have gained popularity in the post-industrial, service-based economy, where work experience is essential to land a full-time job. Unpaid internships were particularly prominent during the Great Recession, when high unemployment and tight corporate budgets pushed college graduates into such positions.

Opponents of unpaid internships claim that such positions deflate the wages of all workers and inhibit class mobility, since they are only feasible for the wealthy. Meanwhile, advocates have defended the unpaid positions as opportunities for young adults to gain real-world experience. Anthony Carnevale, director of the Georgetown University Center on Education and the Workforce, says the Second Circuit must strike a balance between both sides of that argument by eliminating the exploitation of interns while still giving students and recent graduates easy access to viable workplace experience. Internships, he says, “[are] something that needs to be encouraged. We’re in a world now where you need more education to get in the door, and work experience is hard to come by.”

As urgent and dire as those warnings sounded, employers didn’t necessarily have to heed them. And if they decided to stay open for business on Monday and Tuesday, their employees—legally—had little choice in whether to come in or not.

That’s right: as if shoveling all that snow wasn’t bad enough, the blizzard could cost you your job.

“Basically, employees have few, if any, protections in [situations] where their employer wants to fire them for lack of attendance due to bad weather,” says Joseph Seiner, a professor at the University of South Carolina School of Law. That means “workers must decide for themselves the best course of action for themselves and their families—risking injury by braving the weather or risking unemployment by staying home.”

Most states operate under employment-at-will policies, which means that most businesses can fire employees at any time for any reason that is not unlawful (pregnancy or gender or race). In the United States, at-will employment is the default. Montana is the only state that has passed legislation to change that policy. In 1987, it passed the Wrongful Discharge From Employment Act, which says—somewhat vaguely—that termination is wrongful if it “was not for a good cause.” There are also at-will employment exemptions for employees covered by contracts or collective bargaining agreements.

A travel ban, like the one New York City instituted Monday night and lifted Tuesday morning, could also provide a loophole. Generally speaking, state and local governments can’t stop employers from operating or mandate that they keep employees home. But if a worker is fired for obeying a government enactment like a travel ban, Seiner says, she’d have a “good cause of action” to sue to get her job back.

As cruel as at-will employment may seem from a worker’s perspective, it’s one of the foundations of the U.S. economy, Seiner says, and it helps keep unemployment low. Because companies can get rid of employees easily if the economy sours, they’re more willing to hire when the economy is doing well. European countries, by comparison, don’t abide by at-will employment and tend to have higher unemployment rates since companies are reluctant to hire workers who are hard to get rid of.

Missing work because of the blizzard could technically be cause for termination, but it’s risky for companies to fire workers for that reason, says Brett Coburn, an attorney with the Alston & Bird firm. After all, it would likely devastate employee morale.

After sparking outrage, luxury retailer Saks & Company is backing away from controversial statements it made about transgender bias in the workplace.

Last month, Saks said that transgender employees are not covered under the ban on sex discrimination in Title VII of the Civil Rights Act of 1964. The company took that stance when it asked a judge in federal district in Texas to dismiss a lawsuit filed this fall by former selling associate Leyth Jamal, who claims she was harassed and retaliated against because of her transgender identity. Jamal said in her lawsuit that her coworkers at a Saks store in Houston referred to her as a man and forced her to use the men’s bathroom. A manager suggested that she make her appearance more masculine and “separate her home life from work life.” Saks fired Jamal in 2012 after she filed a discrimination complaint with the Equal Employment Opportunity Commission, according to the complaint.

Saks then began to feel the heat from other corners of the legal world. In response to Saks’ filing in late December, New York Attorney General Eric Schneiderman sent a letter to Saks inquiring about its anti-discrimination policies for employees in New York. The Human Rights Campaign and National Center for Lesbian Rights chimed in with a court filing that said that Saks’ “position that Title VII does not protect transgender workers from the types of discrimination and harassment alleged in [Jamal’s] complaint is wrong as a matter of law.”

Saks’ withdrawal came just before the Justice Department blasted the retailer in a filing on Monday. “Saks maintains that Ms. Jamal cannot prevail on a Title VII sex discrimination claim that is based on her gender identity, particularly her transgender status. Not so. Discrimination against an individual based on gender identity is discrimination because of sex.”

The retailer still plans to fight Jamal’s lawsuit on its merits. In a motion to withdrawal filed on Monday, Saks said that it is confident that, “as this matter proceeds, the facts will demonstrate that the plaintiff’s allegations are wholly without merit” and that “Saks did not discriminate against [her].”

Boston’s ban on anti-Olympics talk is unproductive

If you work for the City of Boston and you’re not 100% keen on the idea of the city hosting the 2024 Olympic games—think of the crowds! the construction!—Mayor Martin J. Walsh wants you to keep all those feelings to yourself.

Boston workers and residents learned this week that Walsh has signed an agreement with the United States Olympic Committee that bans City of Boston employees from speaking negatively about the Games or the bidding process. The decree says:

The City, including its employees, officers, and representatives, shall not make, publish or communicate to any Person, or communicated in any public forum, any comments or statements (written or oral) that reflect unfavorably upon, denigrate or disparage, or are detrimental to the reputation or statute of, the [International Olympic Committee], the [International Paralympic Committee], the USOC, the IOC Bid, the Bid Committee or the Olympic or Paralympic movement. The City, including its employees, officers and representatives, shall each promote the Bid Committee, the USOC, the IOC Bid, U.S. Olympic and Paralympic athletes and hopefuls and the Olympic and Paralympic movement in a positive manner.

The decree nears iffy legal territory because it’s so broad and seems to apply to all city employees, says Curtis Summers, a labor and employment lawyer from the Husch Blackwell firm. Employees at private companies have few free speech rights except for those related to improving their workplace and guaranteeing their rights as workers. But the Supreme Court in a June 2014 decision clarified the limits public employers can place on their workers’ speech. The court ruled that speech outside the scope of an employee’s duties is protected.

So, Summers says, if a school employee in Boston says that she doesn’t want to deal with tax increases related to the Olympics and the city tries to enforce its decree against her, that could be a violation of her free speech rights. On the other hand, if an employee in the city’s public relations office speaks ill of the Olympics bid, Boston would likely have more enforcement power against those comments since the PR employee’s main responsibility is to speak publicly on behalf of the city.

“The basic principal is that public employees still have the First Amendment right to speak out as citizens on matters of public concern so long as it doesn’t disrupt their ability to do their jobs,” says Sarah Wunsch, deputy legal director of the American Civil Liberties Union of Massachusetts.

Mayor Walsh defended the decree to The Boston Globe, saying that it’s not his intention to cripple open debate about the Olympics and that he has no plans to reprimand or punish city workers for voicing their opposition to the bid for the 2024 Games. When asked why he signed the decree if that was the case, Walsh said that the agreement was “boilerplate.” The USOC has said that the non-disparagement language is typical of contracts between the organization and bidding cities.

“You can call it boilerplate, but boilerplate has meaning,” Wunsch says. The decree will have a chilling effect on free speech, she says, because it frames supporting the Olympics as positive and being critical of the bid as negative. “If you’re a city employee, you know what [the mayor] thinks.”

The mayor’s office did not return Fortune’s request for comment on the decree’s enforcement and its potential infringement on employees’ First Amendment rights. The USOC also did not immediately respond to a request for comment.

While the legality of the decree may be in question, here’s something that’s not: it’s usefulness.

If the goal of Boston’s ban on Olympic smack talk is to breed the cooperation needed to win and put on a successful Olympic Games, encouraging employees to bottle up their grievances could deliver the exact opposite effect.

“Having a way to deal with dissent is a concern for companies more broadly; they want people to disagree so they can come up with better solutions and build consensus,” says Adam Cobb, a professor at The Wharton School. The Boston ban “has the potential to be counterproductive,” he says. “If you don’t let [dissenters] voice their concerns, they’ll just sit there mad or quit.” Those left behind will simply be yes-men and yes-women. Sure, they will all be on the same page. And they’ll come up with nothing but the same solution for the same problem, again and again.

New York could soon have the highest minimum wage in the U.S.

Move over, Washington state. The U.S. may soon have a new minimum wage king.

During his annual State of the State address on Wednesday, New York Governor Andrew Cuomo formally proposed raising the state’s minimum wage by the end of 2016 from its current $8.75 per hour level to $10.50, a figure that would give the Empire State the highest statewide minimum wage in the nation, moving past Washington’s $9.47 hourly rate. Cuomo also announced a new $11.50 minimum wage for New York City, accounting for the city’s high cost of living.

“The minimum wage is very simple,” Cuomo said on Wednesday. “We believe if you work full-time you should be able to pay the rent and pay for food and not live in poverty. That’s the basic promise of employment, and we’re not there yet,” he said.

The governor’s proposal is expected to face opposition from the Republican-controlled New York Senate.

New York’s minimum wage is set to increase to $9 next year, based on legislation that Cuomo signed into law in 2013. But Cuomo acknowledged that even though the state is in the midst of a three-year minimum wage hike phase-in period, the raises aren’t enough. “The wage gap is continuing to grow,” Cuomo said when he first announced the new wage hike proposal on Sunday.

The governor’s office did not immediately return a request for comment from Fortune on whether the state’s new minimum wage would rise based on the rate of inflation going forward.

While the plan for a separate New York City minimum wage may seem like a major victory for de Blasio, Cuomo’s plan will reportedly keep the power to set minimum wages in the state’s hands. Cuomo’s office did not respond to a question about that aspect of the plan on Wednesday. After announcing the $11.50 wage for New York City on Sunday, the governor did say that he believed the state, not any local government, should set wages.

In September, the EEOC filed its first transgender discrimination lawsuits and in July President Barack Obama issued an executive order prohibiting federal contractors from discriminating against workers based on their sexual orientation or gender identity.

Eleven states, along with the District of Columbia, approved voter referenda or passed legislation to increase their minimum hourly pay rates. Those states include Republican-leaning South Dakota, Nebraska, Arkansas, and Alaska. In the other locations, the increases were routine since the state rate is indexed for inflation.

South Dakota will see the highest increase—from $7.25 to $8.50, while Florida has the smallest—a 12 cent boost prompted by inflation.

After these increases are implemented, 29 states—and 60% of all U.S. workers—will have minimum wage above the federal rate of $7.25 per hour.

The increase from the city’s current $7.25 rate will be implemented slowly over three years. The first boost to $7.75 will come in July 2015, followed by increases to $8.25 in July 2016, and a final hike to $9 a year after that.

Louisville Mayor Greg Fischer had vowed to veto any increase that went above $8.75, and the original proposal called for a hike to $10.10. Fischer said that he would approve the $9 wage, referring to the measure as a “balanced compromise.”